[Federal Register Volume 73, Number 9 (Monday, January 14, 2008)]
[Rules and Regulations]
[Pages 2306-2324]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-69]



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Part II





Department of Education





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34 CFR Part 462



Measuring Educational Gain in the National Reporting System for Adult 
Education; Final Rule

Federal Register / Vol. 73, No. 9 / Monday, January 14, 2008 / Rules 
and Regulations

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DEPARTMENT OF EDUCATION

34 CFR Part 462

RIN 1830-ZA06


Measuring Educational Gain in the National Reporting System for 
Adult Education

AGENCY: Office of Vocational and Adult Education, Department of 
Education.

ACTION: Final regulations.

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SUMMARY: The Secretary establishes procedures for determining the 
suitability of tests for use in the National Reporting System for Adult 
Education (NRS). These final regulations also include procedures that 
States and local eligible providers must follow when using suitable 
tests for NRS reporting.

DATES: These regulations are effective February 13, 2008.
    The incorporation by reference of certain publications listed in 
the rule is approved by the Director of the Federal Register as of 
February 13, 2008. However, affected parties do not have to comply with 
the information collection requirements in Sec. Sec.  462.10, 462.11, 
462.12, 462.13, and 462.14 until the Department of Education publishes 
in the Federal Register the control number assigned by the Office of 
Management and Budget (OMB) to these information collection 
requirements. Publication of the control number notifies the public 
that OMB has approved these information collection requirements under 
the Paperwork Reduction Act of 1995.

FOR FURTHER INFORMATION CONTACT: Mike Dean, U.S. Department of 
Education, 400 Maryland Avenue, SW., Room 11152, Potomac Center Plaza, 
Washington, DC 20202-7240. Telephone: (202) 245-7828 or via Internet: 
<a href="/cdn-cgi/l/email-protection#b4f9dddfd19af0d1d5daf4d1d09ad3dbc2"><span class="__cf_email__" data-cfemail="e7aa8e8c82c9a3828689a78283c9808891">[email protected]</span></a>.
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service (FRS), toll free, at 1-800-877-8339.
    Individuals with disabilities can obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed in the preceding 
paragraph.

SUPPLEMENTARY INFORMATION: These final regulations further the 
Department's implementation of section 212 of the Adult Education and 
Family Literacy Act (Act), 20 U.S.C. 9201 et seq., which establishes a 
system to assess the effectiveness of eligible agencies in achieving 
continuous improvement of adult education and literacy activities.
    On October 18, 2006, the Secretary published a notice of proposed 
rulemaking (NPRM) for 34 CFR part 462 in the Federal Register (71 FR 
61580). In the preamble to the NPRM, the Secretary discussed on pages 
61581 and 61582 the significant proposed regulations. As a result of 
public comment, these final regulations contain several significant 
changes from the NPRM. While we fully explain these changes in the 
Analysis of Comments and Changes section elsewhere in these 
regulations, they are summarized as follows:
    <bullet> Rather than immediately establishing, in Sec.  462.4, a 
deadline for State and local eligible providers to stop using tests 
that are currently listed in the Implementation Guidelines: Measures 
and Methods for the National Reporting System for Adult Education 
(Guidelines), the Secretary will announce a deadline in a notice 
published in the Federal Register after reviewing the first group of 
tests submitted under these regulations.
    <bullet> On April 14, 2008, the Secretary will provide test 
publishers the first opportunity to submit tests for review under these 
final regulations. In subsequent years, in accordance with Sec.  
462.10(b), test publishers must submit applications to the Secretary by 
October 1 of each year.
    <bullet> We have revised several sections of the regulations to 
distinguish between (1) traditional tests, which use items that have 
been generated before the test is administered, and (2) computerized 
tests, which use an algorithm to select test items while the test is 
being administered. The changes affect Sec. Sec.  462.3(b) regarding 
the definition of test, 462.11 regarding the information that must be 
included in a test publisher's application, 462.12 and 462.13 regarding 
the Secretary's review of tests, and 462.41 regarding the 
administration of tests.
    <bullet> Section 462.12(e) has been revised to clarify that test 
publishers can request that the Secretary reconsider a decision to 
revoke a determination that a test is suitable before the Secretary 
makes a final determination about the test's suitability for measuring 
educational gain for the NRS.
    Through these final regulations, we formalize the process for the 
review and approval of tests for use in the NRS. We believe that the 
uniform process in these regulations will facilitate test publishers' 
submissions of tests to the Department for review and will help 
strengthen the integrity of the NRS as a critical tool for measuring 
State performance on accountability measures. This process also will 
provide a means for examining tests that are currently approved for use 
in the NRS, but that have not been updated recently and, therefore, 
need to be reassessed for their continuing validity.

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPRM, 13 parties 
submitted comments on the proposed regulations. An analysis of the 
comments and of the changes in the regulations since publication of the 
NPRM follows.
    We group and discuss issues under the sections of the regulations 
to which they pertain, with the appropriate sections of the regulations 
referenced in parentheses. Generally, we do not address technical and 
minor changes--and suggested changes the law does not authorize the 
Secretary to make.

General Comment

    Comments: A commenter stated that, because each State uses its own 
curriculum frameworks, the validity of a particular test may vary to 
the extent that the test aligns with a State's curricula. The 
commenter, therefore, stated that the Department could not approve a 
test for use in all States without evaluating its validity for each 
State that uses it.
    Discussion: We agree that not all States can use any single test. 
States are expected to select a suitable test or tests that best align 
with their particular curricula. If a State's curriculum is not aligned 
with an existing test, the State will need to develop its own test 
aligned with the State curriculum and submit the test to the Department 
for review under these final regulations.
    Changes: None.

Definitions

Adult Education (Sec.  462.3)
    Comments: A commenter stated that the proposed regulations 
incorrectly defined adult education. The commenter noted that the 
regulations refer to students ``who are not enrolled in secondary 
school'' while the Act refers to students ``who are not enrolled or 
required to be enrolled in secondary school under State law.'' The 
commenter recommended using the definition in the Act.
    Discussion: Section 462.3(a) indicates that certain terms used in 
the regulations, including adult education, are defined in section 203 
of the Act. The language the commenter quotes is from the definition of 
adult education population in Sec.  462.3(b), which is not defined in 
the Act. Nevertheless, we agree that the two definitions should be 
consistent.

[[Page 2307]]

    Changes: We have modified the definition of adult education 
population to include individuals who are not required to be enrolled 
in secondary school under State law in order to make it consistent with 
the definition of adult education in the Act.
Content domains and skill areas (Sec.  462.3)
    Comments: One commenter stated that the term skill areas should be 
used consistently throughout the regulations, instead of the 
regulations using this term interchangeably with the terms content 
domain and content specifications.
    Discussion: In drafting the proposed regulations, we used the terms 
content domain and content specifications in the sections of the 
regulations applicable to test publishers because those are terms of 
art in the test publishing industry. Likewise, the term NRS skill areas 
is used in the sections of the regulations that are applicable to 
States and local eligible recipients because this is a term of art in 
the adult education program. Although we used the term content 
specifications in the proposed regulations, we did not include it as a 
defined term. We think it is appropriate to do so in the final 
regulations because the term has the same meaning as the terms content 
domains and NRS skill areas.
    Changes: We have modified the defined term, content domains or NRS 
skill areas, in proposed Sec.  462.3 to also include the term content 
specifications.
Test publisher (Sec.  462.3)
    Comments: A few commenters expressed concern that the definition of 
test publisher might be too restrictive and could prevent the review of 
some tests. Commenters recommended expanding the definition to include 
universities; adult education programs; other entities that possess 
sufficient expertise and capacity to develop, document, and defend 
assessments; entities in the process of copyrighting a test; and 
entities holding an unregistered copyright to a test. One commenter 
agreed that the Secretary should review only tests from test publishers 
owning a registered copyright.
    Discussion: The proposed regulations did not prohibit universities, 
adult education programs, or other legitimate test developers from 
submitting a test for review. We explained in the preamble to the NPRM 
that entities submitting tests for the Secretary's review must be 
knowledgeable about the test, be able to respond to technical questions 
the Secretary raises during the review process, and have the legal 
right to submit the test for review. With regard to the recommendation 
to have the Secretary approve other entities who can submit a test for 
review, it would be inappropriate and counter-productive for the 
Secretary to determine the suitability of a test submitted for review 
without the permission of the rightful owner of a registered copyright 
of the test or the entity licensed by the copyright holder to sell or 
distribute the test.
    Changes: None.
June 30, 2008, deadline for transitioning to suitable tests (Sec.  
462.4)
    Comments: Several commenters expressed concern that States might 
not have adequate time by the June 30, 2008, deadline to change 
assessment instruments, particularly if the Secretary determines that a 
test is no longer suitable for use in the NRS. The commenters stated 
that States need time to rewrite assessment policies, select 
replacement tests, retrain personnel, purchase materials, modify 
complex data systems, and, possibly, hire special contractors to assist 
with modifying those data systems. A different commenter stated that it 
might take two years to implement a change in State assessment 
instruments. Commenters recommended that the regulations permit a State 
to negotiate a practical transition timeline with the Secretary.
    Commenters also recommended that, because transitioning from 
unsuitable tests places a burden on States' financial resources and 
professional development capabilities, the regulations should be 
deferred until the amount of funds available for State leadership 
becomes 15 percent of the Federal allocation. One commenter indicated 
that local programs often pay the significant cost of purchasing 
assessment instruments and that replacing an entire assessment system 
in a single budget year could devastate a local budget.
    Discussion: Proposed Sec.  462.4 would have permitted States and 
local eligible providers to continue to measure educational gain using 
a test that was identified in the Guidelines until June 30, 2008. 
However, we specifically asked for comments on whether this deadline 
would provide sufficient time for States and local eligible recipients 
to make the transition to suitable tests because we recognized that 
changing tests significantly affects a State's accountability system. 
Our intention in proposing the June 30, 2008, deadline was to ensure 
that States stop using unsuitable tests on a date certain but still 
provide enough time for (1) the Secretary to complete one review of 
tests and (2) States and local eligible recipients to transition from 
unsuitable tests to suitable tests. We also intended to impose a 
deadline that would result in the efficient removal of unsuitable tests 
from use in the NRS. Once the Secretary determines that a test is 
unsuitable for use in the NRS, permitting States to continue using it 
for long periods of time would be inconsistent with the Secretary's 
intent to improve data quality.
    While we understand the desire to defer implementation of the 
regulations because of cost factors and timing constraints, improving 
the quality of State accountability systems and the data reported by 
the NRS is of immediate importance and should not be unduly delayed. 
Adult Education and Family Literacy Programs, like other Federal 
programs, must report on progress made, achievements, and overall 
program effectiveness using valid and reliable measures of performance. 
The regulations are designed to improve the reliability and validity of 
data used to report the educational gains of students, and thereby 
improve the reliability and validity of data on overall program 
effectiveness.
    In light of the commenters' concerns, and to accommodate States' 
needs to make system revisions, provide training, and acquire tests, we 
will not specify a date in these regulations by which States and local 
eligible providers must cease using unsuitable tests; instead, we have 
provided for the Secretary to announce this deadline in a notice 
published in the Federal Register.
    Changes: We have revised Sec.  462.4 to provide that the Secretary 
will announce, through a notice in the Federal Register, a deadline by 
which States and local eligible providers must stop using tests that 
are currently listed in the Guidelines and that the Secretary has 
determined not to be suitable for use in the NRS under these final 
regulations.
Deadline for submitting tests for review by the Secretary (Sec.  
462.10(b))
    Comments: One commenter agreed that the regulations should provide 
an annual deadline for test publishers to submit tests to the Secretary 
for review. Other commenters requested clarification on when the review 
cycle begins and ends. Another commenter asked if the first opportunity 
to submit tests would be in 2007 or in 2008. Yet another commenter 
suggested that the date for submission of tests be no sooner than two 
months and no later than four months after the effective date of the 
final regulations.

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    Discussion: We are establishing April 14, 2008 as the first date by 
which test publishers must submit tests for review under these 
regulations. In subsequent years, test publishers must submit 
applications to the Secretary by October 1 of each year. However, 
because we cannot predict the number of tests that will be submitted 
for review nor the amount of time it will take to review the tests, it 
is not possible to predict how long the process will take from year to 
year. We, therefore, do not think it is appropriate to establish a date 
on which we will announce the results of the Secretary's review. We 
will publish the list of suitable tests well before the program year in 
which they might be used.
    Changes: None.
Content of an application--General (Sec.  462.11)
    Comments: A commenter responded positively to the regulations' 
specific delineation of what an application for test review must 
include. Another commenter asked whether test publishers must use a 
form in addition to submitting the information outlined in proposed 
Sec.  462.11(b) through (j). Another commenter stated that it may be 
too constraining to require test publishers to arrange application 
information in the order established by proposed Sec.  462.11(b) 
through (j).
    Discussion: To facilitate the review process, the regulations in 
Sec.  462.11 describe the specific requirements for the contents of an 
application. A test publisher is not required to submit any form or 
information except as required in Sec.  462.11. We believe that 
organizing the information in the application in the order presented in 
Sec.  462.11(b) through (j) will help to ensure that information about 
a test is easily available to and reviewable by the educational testing 
and assessment experts who will review the tests; however, to provide 
test publishers with some flexibility in organizing their applications, 
we will permit them to include in their applications a table of 
contents that identifies the location of the information requested in 
Sec.  462.11(b) through (j).
    Changes: We have revised Sec.  462.11(a)(3)(ii) to permit test 
publishers to include a table of contents in their applications as an 
alternative to presenting information in the application in the order 
described in Sec.  462.11(b) through (j).
Content of an application--Involvement of the adult education 
population (Sec.  462.11)
    Comments: A commenter stated that proposed Sec.  462.11 would 
generally require a test publisher to demonstrate that adult educators 
have been involved in a test's development and maintenance, and that 
some publishers would not meet that requirement easily. The commenter 
also stated that compliance with the regulations would require 
customized tests developed specifically for use in adult education, 
which would increase the cost and exclude some quality assessments.
    Discussion: The regulations do not require a test publisher to 
demonstrate that adult educators have been involved in a test's 
development and maintenance. We realize that tests developed for other 
populations might not be suitable for use in the NRS because they were 
not developed with the adult education population in mind and do not 
readily measure the educational functioning levels used in the NRS. The 
regulations are clear that the Secretary reviews tests to determine 
their suitability for use in the NRS. For instance, Sec.  462.13(a) 
indicates that, in order for the Secretary to consider a test suitable 
for use in the NRS, the test must measure the NRS educational 
functioning levels of members of the adult education population. 
Accordingly, Sec.  462.11(c)(1)(ii) requires information that 
demonstrates the extent to which the adult education population was 
used to develop and evaluate a test, which is appropriate because the 
tests will be used with that population.
    Changes: None.
Content of an application--Motivation of examinees (Sec.  
462.11(c)(1)(iii))
    Comments: Two commenters were concerned that test publishers would 
have to include information in the application on the motivation of 
examinees used in the development of a test. One commenter indicated 
that ``there is no generally accepted method for identifying and 
classifying the degree and level of motivation of examinees.'' The 
commenter stated that a test publisher could make some assumptions 
about motivation, but indicated that the assumptions would be 
subjective and not scientifically valid. The second commenter requested 
clarification of the expectation that examinees would be motivated.
    Discussion: The regulations only require test publishers to provide 
in their applications information on the steps, if any, taken to ensure 
that examinees were motivated while responding to the test. The 
regulations do not require test publishers to take steps to ensure that 
examinees were motivated while responding to the test. Further, if a 
test publisher were to take such steps, the test publisher would not be 
required to use any particular methodology for doing so.
    Changes: None.
Content of an application--Item development (Sec.  462.11(c))
    Comments: A commenter noted that the proposed regulations did not 
require test publishers to include in their applications information on 
item selection or form development for the test under review.
    Discussion: The commenter's observation is correct and calls 
attention to the need for the regulations to require test publishers to 
include this information in their applications and for the regulations 
to clarify the distinction between traditional tests, which use items 
that have been generated before the test is administered, and those 
that use a computerized algorithm to select test items while the test 
is being administered.
    Changes: We added a new paragraph (3) to Sec.  462.11(c) to require 
test publishers to describe in their applications the procedures used 
to assign items (1) to forms, for tests that are constructed prior to 
being administered to examinees, or (2) to examinees, for adaptive 
tests in which items are selected in real time.
Content of an application--Maintenance: history of test use (Sec.  
462.11(d)(4))
    Comments: A few commenters recommended that the regulations require 
test publishers to include in their applications additional information 
on the history of the test's use.
    Discussion: The regulations require test publishers to provide 
documentation of how a test is maintained, including a history of the 
test's use. We are particularly interested in information on how many 
times the test forms have been administered. This information is useful 
in gauging how much the test forms have been exposed and the likelihood 
of test items being compromised.
    Changes: We have revised Sec.  462.11(d)(4) to clarify that 
information submitted in the application regarding the history of a 
test's use must include information on the number of times the test has 
been administered.
Content of an application--Maintenance (Sec.  462.11(d)(5))
    Comments: A commenter recommended that the regulations require test 
publishers to include in their applications the procedures used for 
computerized adaptive tests to select

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subsets of items for administration, determine the starting point and 
termination conditions, score the tests, and control item exposure.
    Discussion: We agree that requiring test publishers to provide the 
recommended information will help experts to better assess the 
suitability of computerized adaptive tests for use in the NRS.
    Changes: We added a new paragraph (5) to Sec.  462.11(d) to require 
test publishers to include in their applications for computerized 
adaptive tests the information recommended by the commenter.
Content of an application--Match of content to the NRS educational 
functioning levels (content validity) (Sec.  462.11(e)(2) and (4))
    Comments: A few commenters asked if proposed Sec.  462.11(e)(2) and 
(4) were requesting the same information, and sought clarification 
regarding the difference between the paragraphs.
    Discussion: The paragraphs are requesting the same information.
    Changes: We have removed Sec.  462.11(e)(4) to eliminate the 
duplicate information requirement and renumbered the remaining 
paragraphs.
Content of an application--Procedures for matching scores to NRS 
educational functioning levels (Sec.  462.11(f)(2))
    Comments: A commenter stated that requiring the judgments of 
subject-matter experts to translate an examinee's performance to the 
examinee's standing with respect to the NRS educational functioning 
levels might not prove fruitful and would substantially increase the 
cost of test development. The commenter stated that determination of 
score ranges and their fit to the existing NRS levels can be made based 
on an analysis of skills being assessed and an intimate knowledge of 
the assessment tools being used.
    Discussion: Section 462.11(f) does not require the use of subject 
matter experts. It requires test publishers to document the procedure 
they use to translate the performance of an examinee to the examinee's 
standing with respect to the NRS educational functioning levels. A test 
publisher can choose the procedure it thinks is best. However, if a 
test publisher chooses to use judgment-based procedures to translate 
performance, the regulations require the publisher to provide 
information on that procedure, including information concerning the 
subject matter experts the test publisher used. Requiring this 
information is consistent with accepted professional test development 
and standard-setting procedures in the 1999 edition of the Standards 
for Educational and Psychological Testing and will help test publishers 
demonstrate the suitability of their tests for measuring educational 
gain for the NRS.
    Test scores are only useful in this context if they can accurately 
classify individuals according to NRS levels. Therefore, it is 
necessary for test publishers to demonstrate how the range of test 
scores map onto the NRS levels and do so in a reliable and valid 
fashion. In the test development process, developers need to show that 
the range of test scores produced on their tests covers the range of 
skills depicted in the NRS levels, and more importantly, shows which 
range of scores corresponds to a specific NRS level.
    Changes: None.
Content of an application--Reliability (Sec.  462.11(g))
    Comments: A commenter noted that in discussing reliability the 
proposed regulations used the phrase ``the correlation between raw or 
number correct scores.'' The commenter noted that this phraseology is 
not applicable to tests that use an adaptive structure or a multi-
parameter item response theory model. The commenter stated that, in 
such situations, the particular items answered correctly, not the 
number of items answered correctly, determine the score.
    Discussion: We agree with the commenter that the phrase in the 
regulations is not applicable to computerized adaptive tests.
    Changes: We revised Sec.  462.11(g)(1) to require that, in the case 
of computerized adaptive tests, test publishers document in their 
applications the correlation between raw (or scale) scores across 
alternate administrations of the test.
    Comments: With regard to proposed Sec.  462.11(g)(2), a commenter 
suggested that information about the number of individuals classified 
into NRS levels would only provide useful data if the information were 
submitted after the Department approved a test's scores-to-NRS-levels 
crosswalk. The commenter stated that requiring this information prior 
to test approval could produce information that is not meaningful. 
Another commenter responded positively to the requirement for 
``inclusion of information about decision/classification consistency.''
    Discussion: We do not agree that the Department should approve the 
rules a test publisher uses to transform the scores of a test into 
estimates of examinees' NRS educational functioning levels prior to the 
test publisher providing evidence that the transformation rules result 
in reliable, i.e., consistent, educational functioning level 
classifications. We believe that, when an application is submitted, a 
test publisher should be able to provide documentation of the degree of 
consistency in performance across different forms of the test, 
particularly regarding which examinees are classified into the same NRS 
educational functioning levels across different forms of the test. By 
demonstrating that a test can consistently classify individuals into 
the same NRS educational functioning levels across different forms of 
the test, the test publisher assures the Department that assessments of 
educational gain are the result of instruction and other interventions 
to improve literacy, not measurement error. Without this demonstration 
of classification consistency, reports of educational gain are 
uninterpretable. This information is very important to determinations 
about the suitability of a test and whether the test measures the NRS 
educational functioning levels as required in Sec.  462.13(a).
    Changes: None.
Content of an application--Construct validity (Sec.  462.11(h))
    Comments: A commenter expressed concern that proposed Sec.  
462.11(h) would have required the results of several studies on the 
adult education population in connection with other tests designed to 
assess educational gain, which can be useful and meaningful, but also 
time-consuming and expensive. The commenter indicated that imposing 
this requirement after, not before, test approval would permit test 
publishers to collaborate and conduct the studies in a more cost-
effective manner. Further, the commenter stated that the requirement 
could exclude some qualified assessments. The commenter recommended 
that the regulations be rewritten so that (1) these studies would only 
be required of tests that have been approved and (2) a five-year period 
could be provided for conducting the studies.
    Discussion: We do not agree that a test should be approved for use 
in the NRS prior to the test publisher providing documentation of the 
appropriateness of a test for measuring educational gain for the NRS, 
i.e., documentation that the test measures what it is intended to 
measure. Section 462.11(h) is consistent with the 1999 edition of the 
Standards for Educational and Psychological Testing, which stresses the 
importance of gathering evidence of the test's

[[Page 2310]]

construct validity. The Secretary cannot determine whether a test is 
suitable for use in the NRS without having evidence of the test's 
construct validity.
    Changes: None.
Content of an application--Construct validity (Sec.  462.11(h)(1))
    Comments: A commenter expressed concern that proposed Sec.  
462.11(h)(1) would have required test publishers to document the 
appropriateness of a given test for measuring educational gain in the 
NRS, including the correlation between the NRS test results and the 
results of other tests that assess educational gain in the same adult 
education population. The commenter stated that this comparison could 
lead to faulty conclusions if the other test is not an accurate measure 
of the construct.
    Discussion: We believe that it is appropriate to look at test 
correlations as one criterion for evaluating construct validity. 
Generally, a test should correlate with other tests known to measure 
the same construct, and it should not correlate (or have a very low 
correlation) with tests known to measure different constructs. This 
latter relationship depends upon the nature of the comparison 
constructs. To the extent that the two constructs are theoretically 
related, a correlation that approximates their theoretical relationship 
is expected.
    Changes: None.
Content of an application--Construct validity (Sec.  462.11(h)(2))
    Comments: Two commenters stated that proposed Sec.  462.11(h)(2) 
should be reconsidered because ``hours of instruction'' is not a 
variable that correlates highly with test scores.
    Discussion: Proposed Sec.  462.11(h)(2) would have required test 
publishers to document that a test measures what it is intended to 
measure, including the extent to which the raw or scale scores are 
related to other relevant variables, such as hours of instruction or 
other important process or outcome variables. While we are aware of 
data establishing the relationship between Adult Basic Education (ABE) 
test scores and hours of instruction, the reference to ``hours of 
instruction'' in Sec.  462.11(h)(2) was only intended to provide an 
example of a possibly relevant variable.
    Changes: We have revised Sec.  462.11(h)(2) to clarify that ``hours 
of instruction'' is an example of possibly relevant variables.
Content of an application--Other information (Sec.  462.11(i)(1))
    Comments: A commenter requested clarification of the phrase ``an 
analysis of the effects of time on performance'' used in proposed Sec.  
462.11(i)(1). The commenter thought the phrase meant ``the effects of 
the time it takes to administer the test or for a student to complete 
it.''
    Discussion: The commenter is correct. Section 462.11(i)(1) requires 
an application to include a description of the manner in which test 
administration time was determined and an analysis of the speededness 
of the test. The term ``speededness'' as used in Sec.  462.11(i)(1) 
refers to the effects on test performance that result from the time it 
takes to administer or to complete the test.
    Changes: We have revised Sec.  462.11(i)(1) to clarify that we 
require both information on the manner in which test administration 
time was determined and an analysis of the speededness of the test.
Content of an application--Other information (Sec.  462.11(i)(5))
    Comments: A commenter requested clarification of the term 
``retesting procedures'' used in proposed Sec.  462.11(i)(5). The 
commenter asked if the term referred to ``pre- and post-testing.''
    Discussion: The term ``retesting'' as used in Sec.  462.11(i)(5) 
refers to the re-administration of a test that might be necessary 
because of problems in the original administration (e.g., the test 
taker becomes ill during the test and cannot finish, there are external 
interruptions during testing, or there are administration errors).
    Changes: We have revised Sec.  462.11(i)(5) to clarify that 
``retesting'' refers to the re-administration of a test that might be 
necessary because of problems in the original administration such as, 
the test taker becomes ill during the test and cannot finish, there are 
external interruptions during testing, or there are administration 
errors.
Content of an application--Other information (Sec.  462.11(i)(6))
    Comments: A commenter noted that proposed Sec.  462.11(i)(6) would 
require test publishers to provide such other evidence as the Secretary 
determines is necessary to establish the test's compliance with the 
criteria and requirements in proposed Sec.  462.13. The commenter 
requested clarification regarding what that evidence would be.
    Discussion: While Sec.  462.11 includes the information we 
anticipate the Secretary will need to determine whether a test is 
suitable for use in the NRS, we recognize that the Secretary can 
require a test publisher to provide additional information to establish 
a test's compliance with the criteria and requirements in Sec.  462.13. 
Section 462.11(i)(6) merely alerts test publishers to this possibility.
    Changes: None.
Content of an application--Previous tests (Sec.  462.11(j))
    Comments: A commenter asked if a test publisher submitting an 
application for a test that is currently approved for use in the NRS 
would have to provide the information in proposed Sec.  462.11(b) 
through (i) or would have to provide only documentation of periodic 
review of the content and specifications of the test as specified in 
proposed Sec.  462.11(j)(1).
    Discussion: As indicated in Sec.  462.11(a)(1), a test publisher 
must include with its application information listed in paragraphs (b) 
through (i) as well as the applicable information in paragraph (j). All 
applications must, therefore, include the information in Sec.  
462.11(b) through (i).
    Changes: None.
    Comments: A commenter requested clarification of the term 
``periodic review'' used in proposed Sec.  462.11(j)(1) and (2) with 
regard to the documentation that must be submitted for a previous test 
to ensure that it continues to reflect NRS educational functioning 
levels. The commenter asked if annual or bi-annual reviews constitute a 
``periodic review,'' and suggested that the regulations use the term 
``current review'' and specify the intervals for the reviews.
    The commenter also suggested that the regulations address the 
possibility that the NRS educational functioning levels might change. 
The commenter stated that realigning tests to revised NRS educational 
functioning levels would cause a burden for test publishers, and that 
test publishers need at least one year advance notice of any proposed 
changes in the NRS educational functioning levels.
    Discussion: Section 462.11(j) requires test publishers to provide 
specific information about currently used tests to ensure that the 
tests continue to reflect NRS educational functioning levels. The 
shorter the period of time between reviews of a test, the more relevant 
the results would be in determining the test's content validity with 
regard to NRS educational functioning levels. However, we are reluctant 
to specify a time-frame for reviews because we do not want to create an 
additional burden for test

[[Page 2311]]

publishers by requiring reviews more frequently than a test publisher 
typically would perform.
    With regard to providing advance notice to test publishers about 
changes in the NRS educational functioning levels, in the past we have 
customarily provided notice to all concerned parties, including test 
publishers, well in advance of any changes to the NRS educational 
functioning levels by posting notices on the Internet at http://www.nrsweb.org. We intend to continue that practice and, because the 
educational functioning levels are included in Sec.  462.44 of these 
final regulations, will publish a notice of proposed rulemaking in the 
Federal Register requesting comment on any proposed changes to Sec.  
462.44.
    Changes: None.
    Comments: A commenter asked if the phrase ``previous tests used in 
the NRS'' in proposed Sec.  462.11(j)(1) referred only to those tests 
previously listed in the NRS Implementation Guidelines.
    Discussion: The ``previous tests'' discussed in Sec.  462.11(j)(1) 
are tests that were listed in the Guidelines and used to measure 
educational gain in the NRS before the effective date of these final 
regulations.
    Changes: None.
    Comments: A commenter requested clarification of the requirement in 
proposed Sec.  462.11(j)(3) for test publishers to submit ``new data'' 
for tests that have not changed in the seven years since the Secretary 
determined the tests were suitable for use in the NRS.
    Discussion: The intent of Sec.  462.11(j) is to ensure that a test 
publisher provides specific information about a test that has been in 
use for years, but that has not changed in the seven years since the 
Secretary determined the test was suitable for use in the NRS. In this 
circumstance, the regulations require test publishers to provide new, 
i.e., updated, data that support the validity of the test.
    Changes: We have revised Sec.  462.11(j)(3) to clarify that test 
publishers must provide updated data to support test validity.
Computerized tests (Sec. Sec.  462.3, 462.11(c)(3), 462.12(a)(2)(iii), 
462.13(e), and 462.41(c)(3))
    Comments: A commenter acknowledged that the proposed regulations 
attempted to distinguish between traditional paper-based tests and 
computerized tests. However, the commenter recommended that the 
regulations be modified to clarify that the term ``parallel forms'' 
refers to ``paper-based tests or computerized tests that do not involve 
an item selection algorithm, such as computerized adaptive tests, 
multistage adaptive tests, or linear on-the-fly tests.'' The commenter 
suggested specifically changing the proposed regulatory language from 
``and have two or more secure, parallel, equated forms'' to ``and have 
two or more secure, parallel forms if the test is produced before it is 
administered to a learner (e.g., paper-based tests). If the test uses a 
computerized algorithm for administering items in real time, the size 
of the item pool and the method of item selection must ensure 
negligible overlap in items across pre- and post-test.'' Another 
commenter also emphasized the importance of recognizing computerized 
tests.
    Discussion: As we have discussed elsewhere in this notice, we agree 
that the regulations should clarify the distinction between (1) 
traditional tests, which use items that are generated before the test 
is administered, and (2) computerized tests, which use an algorithm to 
select test items while the test is being administered.
    Changes: We have revised Sec. Sec.  462.3 (the definition of test), 
462.11(c)(3), 462.12(a)(2)(iii), 462.13(e), and 462.41(c)(3) to provide 
the clarification recommended by the commenters.
Tests that measure some, but not all, educational functioning levels 
(Sec. Sec.  462.12(a)(2)(iv) and 462.13(b))
    Comments: A commenter requested clarification on whether the 
Secretary will review tests that currently measure only some, but not 
all, educational functioning levels.
    Discussion: The regulations provide for the Secretary to review 
tests that measure some, but not all, educational functioning levels. 
Sections 462.12(a)(2)(iv) and 462.13(b) indicate that the Secretary 
reviews and determines the suitability of a test if an application 
includes a test that samples one or more of the major content domains 
of the NRS educational functioning levels of Adult Basic Education 
(ABE), Adult Secondary Education (ASE), or English-As-A-Second Language 
(ESL) with sufficient numbers of questions to represent adequately the 
domain or domains. Further, Sec.  462.12(b)(2) provides flexibility for 
the Secretary to determine that a test or a sub-test is suitable for 
use in the NRS if it measures the content domain of some, but not all, 
of the NRS educational functioning levels.
    Changes: None.
Procedures the Secretary uses to review the suitability of tests (Sec.  
462.12(b))
    Comments: A commenter asked if the results of the Secretary's 
review of a test would be posted for public review. Another commenter 
suggested that the regulations should provide that test publishers be 
notified at least 30 days before the Secretary notifies States and 
local eligible providers that a test is unsuitable for use in the NRS. 
With regard to tests that the Secretary determines are unsuitable, a 
different commenter recommended that the regulations provide a time-
frame by which the Secretary would review any additional information 
submitted by the test publisher and make a final determination.
    Discussion: In accordance with Sec.  462.12(c)(2), the Secretary 
will annually notify the public through a notice published in the 
Federal Register and posted on the Internet at http://www.nrsweb.org of 
tests that are suitable for use in the NRS. Under Sec.  462.12(e)(5), 
the Secretary will follow the same procedure to notify the public when 
a test that was previously determined suitable is determined to be 
unsuitable. However, the Secretary will not post for public review the 
Secretary's determination regarding a test that has not been previously 
reviewed and that the Secretary determines to be unsuitable. We do not 
believe this is necessary because the Secretary's determination 
regarding these tests will not have an impact on the public, States, or 
local eligible providers.
    Proposed Sec.  462.12(d) provided that a test publisher would have 
30 days to request that the Secretary reconsider the decision that a 
test is unsuitable. Therefore, it will be after this 30-day period that 
the Secretary will notify the public of a decision regarding a test.
    Because it is impossible to anticipate the complexities that might 
be involved in decisions regarding a test that was initially determined 
to be unsuitable, we do not believe it would be appropriate to limit 
the time the Secretary takes to review additional information provided 
by a test publisher and make a final determination regarding the 
suitability of a test. However, we intend to conduct the review as 
expeditiously as possible.
    Changes: None.
Publishing the list of suitable tests (Sec.  462.12(c))
    Comments: A commenter suggested that if tests must be submitted for 
review by October 1 of each year, the test publisher and adult 
education programs should be informed of which

[[Page 2312]]

tests are approved no later than February 1 of the following year.
    Discussion: Within a reasonable time-frame, the Secretary will 
review tests, notify test publishers of the results of the review, and 
provide States and local eligible providers with a list of suitable 
tests. However, because we cannot predict the number of tests that will 
be submitted for review nor the amount of time it will take to review 
the tests, it is not possible to predict how long the process will take 
from year to year. We, therefore, do not think it is appropriate to 
establish a date by which we will announce the results of the 
Secretary's review. We will publish the list of suitable tests well 
before the program year in which they can be used.
    Changes: None.
Revocation of determination that a test is suitable (Sec.  462.12(e))
    Comments: A commenter suggested that test publishers be notified of 
the Secretary's decision to revoke a determination that a test is 
suitable before the Secretary notifies the general public. The 
commenter stated that test publishers should be given sufficient time 
to address the Secretary's concerns before the Secretary revokes the 
determination that the test is suitable. This would provide a process 
comparable to the process proposed for a test that the Secretary 
determines is unsuitable.
    Discussion: We agree that test publishers should have an 
opportunity to address the Secretary's decision to revoke a 
determination that a test is suitable before that determination becomes 
a final decision.
    Changes: We have revised Sec.  462.12(e) to give test publishers an 
opportunity to request that the Secretary reconsider a decision to 
revoke a determination that a test is unsuitable.
    Comments: A commenter stated that proposed Sec.  462.14(b) was 
unclear concerning the reasons a test's seven-year approval status 
might be revoked.
    Discussion: Section 462.12(e), not Sec.  462.14(b), establishes the 
reasons for which the Secretary can revoke the determination regarding 
the suitability of a test. In the proposed regulation, we stated that 
the Secretary can revoke the determination if the Secretary determines 
that the information submitted as a basis for the Secretary's review of 
the test was inaccurate. In proposed Sec.  462.14(b), however, we 
implied that the Secretary also could revoke a determination regarding 
the suitability of a test if the test is substantially revised--for 
example, by changing its structure, number of items, content 
specifications, item types or sub-tests.
    The proposed regulations were, therefore, unclear as to whether the 
Secretary could revoke a determination about the suitability of a test 
if the test had been substantially revised. We intended that revision 
of a test would be a valid reason for revoking a determination about 
test suitability.
    Changes: We have revised Sec.  462.12(e) to clarify that 
substantial changes to a test is one of the reasons the Secretary can 
revoke a determination regarding the suitability of a test.
Criteria and requirements for determining test suitability (Sec.  
462.13(c)(1), (d), and (f)(3) (proposed (g)(3))
    Comments: A commenter noted that The Standards for Educational and 
Psychological Testing referenced in Sec.  462.13(c) provides specific 
guidelines for the technical documentation, including evidence of 
validity that should be made available to interested parties. The 
commenter recommended clarifying that publishers should provide the 
Secretary with information regarding test development and validity.
    Discussion: In proposed Sec.  462.13(c)(1), we indicated that, in 
order for a test to be determined suitable for use in the NRS, the test 
would have to meet all applicable and feasible standards for test 
construction provided in The Standards for Educational and 
Psychological Testing. We did not intend this language to imply that 
the Secretary would review only information that is related to test 
development. We agree with the commenter that validity is an important 
factor in test evaluation and make it clear in Sec.  462.11(e) through 
(g), that test publishers must include in their applications 
information on content validity, reliability, and construct validity. 
However, we think adding the reference to ``validity'' in Sec.  
462.13(c)(1) will reinforce the importance of test publishers providing 
information on validity.
    Changes: We have revised Sec.  462.13(c)(1) to require a test to 
meet all applicable and feasible standards for test construction and 
validity that are provided in the Standards for Educational and 
Psychological Testing.
    Comments: A commenter noted that many factors influence the 
appropriate time between testing and retesting, including intensity of 
instruction, frequency and length of class meetings, and class size. 
The commenter wanted to ``decrease the emphasis on a single protocol 
for post-testing'' and suggested that, when discussing the time between 
test-taking, the regulations use the term ``publisher's 
recommendations'' instead of the term ``publisher's guidelines'' that 
was used in proposed Sec. Sec.  462.13(d) and 462.40(c)(3)(ii).
    Discussion: We do not agree that the term ``publisher's 
guidelines'' emphasizes the use of a single protocol when determining 
when to administer a post-test. State and local eligible providers, 
like the commenter, are aware that many factors influence the 
appropriate time between pre-testing and post-testing. These factors 
are taken into consideration by test administrators at the local level. 
However, because tests differ, test administrators rely on the 
guidelines, developed during test construction and validation and 
provided by test publishers, to help ensure that a sufficient amount of 
time has passed before a post-test is given in order to optimize the 
measurement of educational gains.
    Changes: None.
    Comments: A commenter requested clarification of Sec.  462.13(f)(3) 
(proposed Sec.  462.13(g)(3)), which requires the publisher of a test 
modified for an individual with a disability to recommend educational 
functioning levels based on the previous performance of test-takers who 
are members of the adult education population of interest to the NRS in 
order for the Secretary to consider a test suitable for use.
    Discussion: In order for the Secretary to consider a test that has 
been modified for individuals with disabilities suitable for use in the 
NRS, test publishers must (1) demonstrate that adult education students 
with disabilities were included in the pilot or field test referred to 
in Sec.  462.11(c)(1); (2) match scores to the NRS educational 
functioning levels based on the information obtained from adult 
education students with the disability who participated in the pilot or 
field test and for whom the test has been adapted; and (3) provide in 
the application, as required in Sec.  462.11(f), documentation of the 
adequacy of the procedure used to translate the performance of adult 
education students with the disability for whom the test has been 
modified to an estimate of the examinees' standing with respect to the 
NRS educational functional levels.
    Changes: In response to the comment, we changed Sec.  462.13(f)(3) 
to clarify that the Secretary considers a test modified for individuals 
with disabilities suitable for use in the NRS if test publishers (1) 
recommend educational functioning levels based on the information 
obtained from adult education students who participated in the pilot or 
field test and who have the disability for

[[Page 2313]]

which the test has been adapted and (2) provide documentation of the 
adequacy of the procedure used to translate the performance of adult 
education students with the disability for whom the test has been 
modified to an estimate of the examinees' standing with respect to the 
NRS educational functional levels.
Subpart D--General (Sec. Sec.  462.40-462.44)
    Comments: Several commenters noted that the Department currently 
provides non-regulatory guidance to States on the NRS. The commenters 
asked why the Department is issuing regulations when most States comply 
with and are successfully implementing the non-regulatory guidance and 
the guidance provides each State with needed flexibility. The 
commenters stated that ``as long as States are complying with 
guidelines and meeting performance standards, we understand that the 
Federal role is to limit regulations and allow the States to 
continually increase their capabilities to improve program services.'' 
The commenters, therefore, recommended that subpart D be removed from 
the final regulations and that the Secretary provide technical 
assistance and resources to the few States that are having difficulty 
creating effective assessment and data procedures. Additionally, one of 
these commenters stated that while guidance is valued, regulations 
sometimes seem arbitrary, intrusive, and unnecessary.
    Discussion: It is the Department's policy to regulate only when 
essential to promote quality, and then in the most flexible, most 
equitable, and least burdensome way possible. We believe these 
regulations comply with that policy. While the regulations in subpart D 
are legally binding, they largely codify the guidance provided in the 
Guidelines and the ``State Assessment Policy Guidance.'' Although 
States have made significant progress, there remains variability in the 
quality of State processes and procedures in the collection and 
reporting of data on student assessment and performance. These 
regulations, like the Guidelines, technical assistance activities, and 
other efforts the Department has supported to improve data quality, 
provide a significant tool to create a standard level of quality among 
all States and thereby strengthen the integrity of the NRS as a 
critical tool for measuring State performance and the impact of adult 
education.
    Changes: None.
Meaning of the term ``placement'' (Sec. Sec.  462.40(c)(4), (c)(6) and 
(c)(10), 462.41(c)(3) (proposed), 462.42(a), (b)(2), and (c)(1), 
(d)(1), and (d)(2), and 462.43(a)(2) and (b))
    Comments: A few commenters stated that using the term ``placement'' 
in the regulations to mean the ``assignment of a student to the 
appropriate NRS educational functioning level'' is confusing because 
the traditional meaning of placement is ``placing a student in a 
particular class or other instructional offering.'' Commenters noted 
that tests designed for placement are different from those used to 
measure educational gain.
    Discussion: The regulations, like the Guidelines currently used by 
States, use the terms ``place'' and ``placement'' as terms of art to 
refer to the placement of students in NRS educational functioning 
levels in order to measure and then report on educational gain in the 
NRS. It is only within this context that the terms are used, and no 
other meaning should be inferred.
    Changes: None.
Placing students (Sec.  462.42(d)(1) and (2))
    Comments: A commenter stated that placing a student in an NRS 
educational functioning level using the lowest test score could result 
in programs providing instruction in skill areas that are not most 
relevant to the student. Further, the commenter stated that programs 
(1) should not place students based on one test and (2) should be 
allowed to use multiple placement tools and other pertinent 
information, such as student goals, to determine placement. Another 
commenter stated that all scores have some measurement error and that 
instituting a policy of using the lowest test score might introduce 
systematic, rather than random, measurement errors. This commenter also 
indicated that the policy of using the lowest test score could 
encourage programs to teach students only in an area where gain is to 
be expected. The commenter stated that a better policy would be either 
to focus on the learner's primary subject area at pre-test, or evaluate 
gain based on a composite score across areas.
    Discussion: With regard to placing a student using the lowest test 
score when the student is tested in multiple skill areas, Sec.  
462.42(d)(1) and (2) are consistent with the policy in the Guidelines, 
which indicates: ``States should provide to local programs the criteria 
for placing students at each educational functioning level, using test 
scores from the initial assessment. Not all of the skill areas 
described in the [functioning] level descriptors need to be used to 
place students, but the skill used should be the areas most relevant to 
the students' needs and the program's curriculum. If multiple skill 
areas are assessed and the student has differing abilities in each 
area, however, NRS policy requires that the program place the student 
according to the lowest skill area.'' The Department's policy ensures 
that States use a standardized approach when reporting educational 
gain, which ensures comparability of data. These regulations use the 
term ``placement'' as a term of art to refer to the placement of 
students in NRS educational functioning levels in order to measure and 
then report on educational gain in the NRS. Placement of a student in 
an educational functioning level for NRS purposes does not affect 
placement in an instructional program. States can use a variety of 
tools when devising an instructional program for students. States and 
local eligible providers know that using the lowest test score is a 
convention used for reporting purposes and it is not intended to 
encourage programs to teach students only in skill areas in which 
students scored the lowest on tests or only in skill areas in which 
gain is expected. The policy also is not intended to restrict the 
number or type of assessments used to identify a student's needs and to 
customize an instructional program to meet those needs. In fact, 
programs are expected to teach students in multiple areas depending on 
the students' needs and the programs' curricula.
    We do not agree with the commenter that using the lowest test score 
might introduce systematic, rather than random, measurement error. 
Using the lowest test score in order to operationalize educational gain 
in a consistent manner across States for reporting purposes is error 
free. If tests have met the standards established in these regulations, 
they should be able to assess skills at any level with minimum error.
    Changes: None.
Measuring educational gain (Sec.  462.43)
    Comments: A commenter suggested the Department measure significant 
gain as determined by test developers. The commenter thought this 
approach would be the most accurate measure of gain. The commenter 
opposed the approach in proposed Sec.  462.43, stating that it would 
only capture learning gain when a learner completes an educational 
functioning level by crossing artificial cut points regardless of the 
starting level. Another commenter stated that the approach for 
measuring gain in Sec.  462.43 is ``too coarse, is likely

[[Page 2314]]

to capture only extreme gain, and will miss very significant 
educational gains that occur within an EFL [educational functioning 
level].'' The commenter suggested that the Department consider using 
other options for demonstrating educational gain such as ``achieving a 
gain score that is beyond chance expectations (using a scale score, 
which is more reliable than a proficiency classification).'' Another 
commenter stated that ``awarding only one educational gain to students 
completing more than one educational functioning level to a high degree 
misrepresents and under reports the effectiveness and accomplishment of 
both adult teacher and learner.'' This commenter also stated that the 
current NRS policy of reporting an educational gain for obtaining a 
General Educational Development (GED) diploma by learners in ASE II, 
but not to those in ABE or ASE I, misrepresents and under-reports 
accomplishments. A different commenter suggested that attainment of a 
GED diploma should be recognized as an educational gain.
    Discussion: The approach for measuring educational gain in Sec.  
462.43 is well established and accepted by the field. Over a two-year 
period, the Department consulted with States and convened a statutorily 
mandated panel in order to develop a performance accountability system 
for the adult education program. During that time, consensus was 
reached on defining the performance measures, including how to measure 
educational gain. States and other participating entities agreed that 
the approach in Sec.  462.43 is the most effective means of obtaining 
accurate, reliable, and valid information on student performance.
    Changes: None.
High Advanced ESL (Sec.  462.44)
    Comments: Some commenters opposed proposed Sec.  462.44 because it, 
like the Guidelines, eliminated the ``High Advanced ESL'' literacy 
level from the Functioning Level Table. The commenters noted that the 
change means that State and local agencies will no longer be able to 
report educational gain for adult English language learners above the 
``Advanced ESL'' literacy level or Student Performance Level (SPL) 6. 
The commenters stated that, based on communications with the 
Department's Office of Vocational and Adult Education (OVAE), the 
change also means that programs can no longer provide ``High Advanced 
ESL'' instruction in adult education programs. The commenters indicated 
that OVAE has suggested that students who would have received ``High 
Advanced ESL'' instruction should now complete their preparation by 
moving from ESL classes to either adult basic education or adult 
secondary education classes. The commenters expressed their belief that 
OVAE's suggestion is pedagogically problematic and, more importantly, 
would prevent programs from adequately addressing the learning needs of 
ESL learners. Further, the commenters opposed stopping ESL instruction 
at the ``Advanced ESL'' literacy level or SPL 6 because they believe 
students at that level do not have language and literacy skills that 
are sufficient to transition successfully to postsecondary education or 
to meet the demands of the workplace--two of the purposes for adult 
education that are cited in the Act. Commenters noted that the 
regulations do not place this same restriction on native English 
speakers and recommended that the ``High Advanced ESL'' literacy level 
be restored to the Functioning Level Table. Finally, the commenters 
recommended that the regulations provide States with flexibility and 
not limit program services.
    Discussion: Commenters are correct in that proposed Sec.  462.44 
would codify a change in the Guidelines by eliminating the ``High 
Advanced ESL'' literacy level from the Functioning Level Table. The 
change was made in 2006 as part of the information collection request 
for the Guidelines. However, before the change was made, (1) OVAE 
consulted with Adult Education State Directors and (2) the Office of 
Management and Budget (OMB) provided interested Federal agencies and 
the public, including States and local eligible providers, an 
opportunity to comment on the information collection request, which 
included the removal of the ``High Advanced ESL'' literacy level from 
the Functioning Level Table. We received no negative comments regarding 
our intent to eliminate the ``High Advanced ESL'' literacy level, and 
therefore, changed the Functioning Level Table in the Guidelines and in 
the proposed regulations.
    The change in the Functioning Level Table does not mean that adult 
education programs can no longer provide services to ``High Advanced 
ESL'' students. These regulations are consistent with the Act, which 
authorizes services below the postsecondary level, and do not change 
who can be served by adult education programs. The educational 
functioning levels largely serve to classify students for reporting 
purposes and should not be viewed as the standard for establishing the 
type of instruction that can be provided. Placement of a student in an 
educational functioning level for NRS purposes does not affect 
placement in an instructional program. A student who scores above an 
SPL 6 might still be served in adult education programs if he or she 
has an educational need below the postsecondary level. States have the 
flexibility to determine how programs are structured, how students are 
placed in programs, and how instruction is delivered.
    Changes: None.
Student Performance Levels (SPL) (Sec.  462.44)
    Comments: A commenter requested clarification of the relationship 
between the NRS literacy levels and SPLs in the Functioning Level 
Table. The commenter indicated that no exact definition of SPL levels 
is provided and, therefore, their relationship to the NRS levels is 
unclear.
    Discussion: The SPLs were developed by the Center for Applied 
Linguistics to provide a standard description of adult refugees' 
abilities at a range of levels and a common standard for ESL level 
descriptions for use by programs nationwide. They are nationally 
recognized in the adult ESL education community and represent a 
standard metric for identifying skill levels of adult ESL students in 
general language ability, listening comprehension, and oral 
communication. The Functioning Level Table provides educational 
functioning level descriptors for students at literacy levels in ABE, 
ASE, and ESL. The literacy levels are divided into equivalent grade 
levels for ABE and ASE and into SPLs for ESL. The descriptors 
illustrate the types of skills students functioning at a given level 
are likely to have. The descriptors do not provide a complete or 
comprehensive delineation of all the skills at a particular level, but 
instead, provide examples to guide assessment and instruction.
    Changes: None.

Executive Order 12866

    We have reviewed these final regulations in accordance with 
Executive Order 12866. Under the terms of the order we have assessed 
the potential costs and benefits of this regulatory action.
    The potential costs associated with the final regulations are those 
resulting from statutory requirements and those we have determined to 
be necessary for administering this program effectively and 
efficiently.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of these final regulations,

[[Page 2315]]

we have determined that the benefits of the regulations justify the 
costs.
    We have also determined that this regulatory action does not unduly 
interfere with State, local, and tribal governments in the exercise of 
their governmental functions.
    We discussed the potential costs and benefits of these final 
regulations in the preamble to the NPRM under the headings Significant 
Proposed Regulations (pages 61581 and 61582), Regulatory Flexibility 
Act Certification (pages 61582 and 61583), and Paperwork Reduction Act 
of 1995 (page 61583).

Paperwork Reduction Act of 1995

    The Paperwork Reduction Act of 1995 does not require you to respond 
to a collection of information unless it displays a valid OMB control 
number. With the exception of Sec. Sec.  462.10 through 462.14, we 
display the valid OMB control number assigned to the collection of 
information in these final regulations at the end of the affected 
sections of the regulations.

Intergovernmental Review

    These regulations are subject to Executive Order 12372 and the 
regulations in 34 CFR part 79. One of the objectives of the Executive 
order is to foster an intergovernmental partnership and a strengthened 
federalism by relying on processes developed by State and local 
governments for coordination and review of proposed Federal financial 
assistance.
    In accordance with the order, we intend this document to provide 
early notification of the Department's specific plans and actions for 
this program.

Assessment of Educational Impact

    In the NPRM we requested comments on whether the proposed 
regulations would require transmission of information that any other 
agency or authority of the United States gathers or makes available.
    Based on the response to the NPRM and on our review, we have 
determined that these final regulations do not require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.

Electronic Access to This Document

    You can view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at the following site: 
http://www.ed.gov/news/fedregister.
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.

    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.

(Catalog of Federal Domestic Assistance Number does not apply.)

List of Subjects in 34 CFR Part 462

    Administrative practice, Adult education, Grants program--
education, Incorporation by reference, and Reporting and recordkeeping 
requirements.

    Dated: January 7, 2008.
Margaret Spellings,
Secretary of Education.

0
For the reasons discussed in the preamble, the Secretary amends title 
34 of the Code of Federal Regulations by adding a new part 462 to read 
as follows:

PART 462--MEASURING EDUCATIONAL GAIN IN THE NATIONAL REPORTING 
SYSTEM FOR ADULT EDUCATION

Subpart A--General
Sec.
462.1 What is the scope of this part?
462.2 What regulations apply?
462.3 What definitions apply?
462.4 What are the transition rules for using tests to measure 
educational gain for the National Reporting System for Adult 
Education (NRS)?
Subpart B--What Process Does the Secretary Use To Review the 
Suitability of Tests for Use in the NRS?
462.10 How does the Secretary review tests?
462.11 What must an application contain?
462.12 What procedures does the Secretary use to review the 
suitability of tests?
462.13 What criteria and requirements does the Secretary use for 
determining the suitability of tests?
462.14 How often and under what circumstances must a test be 
reviewed by the Secretary?
Subpart C--[Reserved]
Subpart D--What Requirements Must States and Local Eligible Providers 
Follow When Measuring Educational Gain?
462.40 Must a State have an assessment policy?
462.41 How must tests be administered in order to accurately measure 
educational gain?
462.42 How are tests used to place students at an NRS educational 
functioning level?
462.43 How is educational gain measured?
462.44 Which educational functioning levels must States and local 
eligible providers use to measure and report educational gain in the 
NRS?

    Authority: 20 U.S.C. 9212, unless otherwise noted.

Subpart A--General


Sec.  462.1  What is the scope of this part?

    The regulations in this part establish the--
    (a) Procedures the Secretary uses to determine the suitability of 
standardized tests for use in the National Reporting System for Adult 
Education (NRS) to measure educational gain of participants in an adult 
education program required to report under the NRS; and
    (b) Procedures States and local eligible providers must follow when 
measuring educational gain for use in the NRS.

(Authority: 20 U.S.C. 9212)


Sec.  462.2  What regulations apply?

    The following regulations apply to this part:
    (a) The Education Department General Administrative Regulations 
(EDGAR) as follows:
    (1) 34 CFR part 74 (Administration of Grants and Agreements with 
Institutions of Higher Education, Hospitals, and Other Non-Profit 
Organizations).
    (2) 34 CFR part 76 (State-Administered Programs).
    (3) 34 CFR part 77 (Definitions that Apply to Department 
Regulations).
    (4) 34 CFR part 79 (Intergovernmental Review of Department of 
Education Programs and Activities).
    (5) 34 CFR part 80 (Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments).
    (6) 34 CFR part 81 (General Education Provisions Act--Enforcement).
    (7) 34 CFR part 82 (New Restrictions on Lobbying).
    (8) 34 CFR part 84 (Governmentwide Requirements for Drug-Free 
Workplace (Financial Assistance)).
    (9) 34 CFR part 85 (Governmentwide Debarment and Suspension 
(Nonprocurement)).
    (10) 34 CFR part 86 (Drug and Alcohol Abuse Prevention).
    (11) 34 CFR part 97 (Protection of Human Subjects).
    (12) 34 CFR part 98 (Student Rights in Research, Experimental 
Programs, and Testing).
    (13) 34 CFR part 99 (Family Educational Rights and Privacy).

[[Page 2316]]

    (b) The regulations in this part 462.

(Authority: 20 U.S.C. 9212)


Sec.  462.3  What definitions apply?

    (a) Definitions in the Adult Education and Family Literacy Act 
(Act). The following terms used in these regulations are defined in 
section 203 of the Adult Education and Family Literacy Act, 20 U.S.C. 
9202 (Act):
Adult education,
Eligible provider,
Individual of limited English proficiency,
Individual with a disability,
Literacy.

    (b) Other definitions. The following definitions also apply to this 
part:
    Adult basic education (ABE) means instruction designed for an adult 
whose educational functioning level is equivalent to a particular ABE 
literacy level listed in the NRS educational functioning level table in 
Sec.  462.44.
    Adult education population means individuals--
    (1) Who are 16 years of age or older;
    (2) Who are not enrolled or required to be enrolled in secondary 
school under State law; and
    (3) Who--
    (i) Lack sufficient mastery of basic educational skills to enable 
the individuals to function effectively in society;
    (ii) Do not have a secondary school diploma or its recognized 
equivalent, and have not achieved an equivalent level of education; or
    (iii) Are unable to speak, read, or write the English language.
    Adult secondary education (ASE) means instruction designed for an 
adult whose educational functioning level is equivalent to a particular 
ASE literacy level listed in the NRS educational functioning level 
table in Sec.  462.44.
    Content domains, content specifications, or NRS skill areas mean, 
for the purpose of the NRS, reading, writing, and speaking the English 
language, numeracy, problem solving, English language acquisition, and 
other literacy skills as defined by the Secretary.
    Educational functioning levels mean the ABE, ASE, and ESL literacy 
levels, as provided in Sec.  462.44, that describe a set of skills and 
competencies that students demonstrate in the NRS skill areas.
    English-as-a-second language (ESL) means instruction designed for 
an adult whose educational functioning level is equivalent to a 
particular ESL literacy level listed in the NRS educational functioning 
level table in Sec.  462.44.
    Guidelines means the Implementation Guidelines: Measures and 
Methods for the National Reporting System for Adult Education (also 
known as NRS Implementation Guidelines) posted on the Internet at: 
http://www.nrsweb.org. A copy of the Guidelines is also available from 
the U.S. Department of Education, Division of Adult Education and 
Literacy, 400 Maryland Avenue, SW., room 11159, Potomac Center Plaza, 
Washington, DC 20202-7240.
    Local eligible provider means an ``eligible provider'' as defined 
in the Act that operates an adult education program that is required to 
report under the NRS.
    State means ``State'' and ``Outlying area'' as defined in the Act.
    Test means a standardized test, assessment, or instrument that has 
a formal protocol on how it is to be administered. These protocols 
include, for example, the use of parallel, equated forms, testing 
conditions, time allowed for the test, standardized scoring, and the 
amount of instructional time a student needs before post-testing. 
Violation of these protocols often invalidates the test scores. Tests 
are not limited to traditional paper and pencil (or computer-
administered) instruments for which forms are constructed prior to 
administration to examinees. Tests may also include adaptive tests that 
use computerized algorithms for selecting and administering items in 
real time; however, for such instruments, the size of the item pool and 
the method of item selection must ensure negligible overlap in items 
across pre- and post-testing.
    Test administrator means an individual who is trained to administer 
tests the Secretary determines to be suitable under this part.
    Test publisher means an entity, individual, organization, or agency 
that owns a registered copyright of a test or is licensed by the 
copyright holder to sell or distribute a test.

(Authority: 20 U.S.C. 9202, 9212)


Sec.  462.4  What are the transition rules for using tests to measure 
educational gain for the National Reporting System for Adult Education 
(NRS)?

    A State or a local eligible provider may continue to measure 
educational gain for the NRS using a test that was identified in the 
Guidelines until the Secretary announces through a notice published in 
the Federal Register a deadline by which States and local eligible 
providers must use only tests that the Secretary has reviewed and 
determined to be suitable for use in the NRS under this part.

(Approved by the Office of Management and Budget under control 
number 1830-0027)

(Authority: 20 U.S.C. 9212)

Subpart B--What Process Does the Secretary Use To Review the 
Suitability of Tests for Use in the NRS?


Sec.  462.10  How does the Secretary review tests?

    (a) The Secretary only reviews tests under this part that are 
submitted by a test publisher.
    (b) A test publisher that wishes to have the suitability of its 
test determined by the Secretary under this part must submit an 
application to the Secretary, in the manner the Secretary may 
prescribe, by April 14, 2008, and, thereafter, by October 1 of each 
year.

(Authority: 20 U.S.C. 9212)


Sec.  462.11  What must an application contain?

    (a) Application content and format. In order for the Secretary to 
determine whether a standardized test is suitable for measuring the 
gains of participants in an adult education program required to report 
under the NRS, a test publisher must--
    (1) Include with its application information listed in paragraphs 
(b) through (i) of this section, and, if applicable, the information 
listed in paragraph (j) of this section;
    (2) Provide evidence that it holds a registered copyright of a test 
or is licensed by the copyright holder to sell or distribute a test.
    (3)(i) Arrange the information in its application in the order it 
is presented in paragraphs (b) through (j) of this section; or
    (ii) Include a table of contents in its application that identifies 
the location of the information required in paragraphs (b) through (j) 
of this section.
    (4) Submit to the Secretary three copies of its application.
    (b) General information. (1) A statement, in the technical manual 
for the test, of the intended purpose of the test and how the test will 
allow examinees to demonstrate the skills that are associated with the 
NRS educational functioning levels in Sec.  462.44.
    (2) The name, address, e-mail address, and telephone and fax 
numbers of a contact person to whom the Secretary may address 
inquiries.
    (3) A summary of the precise editions, forms, levels, and, if 
applicable, sub-tests and abbreviated tests that the test publisher is 
requesting that the Secretary review and determine to be suitable for 
use in the NRS.
    (c) Development. Documentation of how the test was developed, 
including a description of--
    (1) The nature of samples of examinees administered the test during 
pilot or field testing, such as--

[[Page 2317]]

    (i) The number of examinees administered each item;
    (ii) How similar the sample or samples of examinees used to develop 
and evaluate the test were to the adult education population of 
interest to the NRS; and
    (iii) The steps, if any, taken to ensure that the examinees were 
motivated while responding to the test; and
    (2) The steps taken to ensure the quality of test items or tasks, 
such as--
    (i) The extent to which items or tasks on the test were reviewed 
for fairness and sensitivity; and
    (ii) The extent to which items or tasks on the test were screened 
for the adequacy of their psychometric properties.
    (3) The procedures used to assign items to--
    (i) Forms, for tests that are constructed prior to being 
administered to examinees; or
    (ii) Examinees, for adaptive tests in which items are selected in 
real time.
    (d) Maintenance. Documentation of how the test is maintained, 
including a description of--
    (1) How frequently, if ever, new forms of the test are developed;
    (2) The steps taken to ensure the comparability of scores across 
forms of the test;
    (3) The steps taken to maintain the security of the test;
    (4) A history of the test's use, including the number of times the 
test has been administered; and
    (5) For a computerized adaptive test, the procedures used to--
    (i) Select subsets of items for administration;
    (ii) Determine the starting point and termination conditions;
    (iii) Score the test; and
    (iv) Control for item exposure.
    (e) Match of content to the NRS educational functioning levels 
(content validity). Documentation of the extent to which the items or 
tasks on the test cover the skills in the NRS educational functioning 
levels in Sec.  462.44, including--
    (1) Whether the items or tasks on the test require the types and 
levels of skills used to describe the NRS educational functioning 
levels;
    (2) Whether the items or tasks measure skills that are not 
associated with the NRS educational functioning levels;
    (3) Whether aspects of a particular NRS educational functioning 
level are not covered by any of the items or tasks;
    (4) The procedures used to establish the content validity of the 
test;
    (5) The number of subject-matter experts who provided judgments 
linking the items or tasks to the NRS educational functioning levels 
and their qualifications for doing so, particularly their familiarity 
with adult education and the NRS educational functioning levels; and
    (6) The extent to which the judgments of the subject matter experts 
agree.
    (f) Match of scores to NRS educational functioning levels. 
Documentation of the adequacy of the procedure used to translate the 
performance of an examinee on a particular test to an estimate of the 
examinee's standing with respect to the NRS educational functioning 
levels in Sec.  462.44, including--
    (1) The standard-setting procedures used to establish cut scores 
for transforming raw or scale scores on the test into estimates of an 
examinee's NRS educational functioning level;
    (2) If judgment-based procedures were used--
    (i) The number of subject-matter experts who provided judgments, 
and their qualifications; and
    (ii) Evidence of the extent to which the judgments of subject-
matter experts agree;
    (3) The standard error of each cut score, and how it was 
established; and
    (4) The extent to which the cut scores might be expected to differ 
if they had been established by a different (though similar) panel of 
experts.
    (g) Reliability. Documentation of the degree of consistency in 
performance across different forms of the test in the absence of any 
external interventions, including--
    (1) The correlation between raw (or scale) scores across alternate 
forms of the test or, in the case of computerized adaptive tests, 
across alternate administrations of the test;
    (2) The consistency with which examinees are classified into the 
same NRS educational functioning levels across forms of the test. 
Information regarding classification consistency should be reported for 
each NRS educational functioning level that the test is being 
considered for use in measuring;
    (3) The adequacy of the research design leading to the estimates of 
the reliability of the test, including--
    (i) The size of the sample(s);
    (ii) The similarity between the sample(s) used in the data 
collection and the adult education population; and
    (iii) The steps taken to ensure the motivation of the examinees; 
and
    (4) Any other information explaining the methodology and procedures 
used to measure the reliability of the test.
    (h) Construct validity. Documentation of the appropriateness of a 
given test for measuring educational gain for the NRS, i.e., 
documentation that the test measures what it is intended to measure, 
including--
    (1) The extent to which the raw or scale scores and the educational 
functioning classifications associated with the test correlate (or 
agree) with scores or classifications associated with other tests 
designed or intended to assess educational gain in the same adult 
education population as the NRS;
    (2) The extent to which the raw or scale scores are related to 
other relevant variables, such as teacher evaluation, hours of 
instruction, or other measures that may be related to test performance;
    (3) The adequacy of the research designs associated with these 
sources of evidence (see paragraph (g)(3) of this section); and
    (4) Other evidence demonstrating that the test measures gains in 
educational functioning resulting from adult education and not from 
other construct-irrelevant variables, such as practice effects.
    (i) Other information. (1) A description of the manner in which 
test administration time was determined, and an analysis of the 
speededness of the test.
    (2) Additional guidance on the interpretation of scores resulting 
from any modifications of the tests for an individual with a 
disability.
    (3) The manual provided to test administrators containing 
procedures and instructions for test security and administration.
    (4) A description of the training or certification required of test 
administrators and scorers by the test publisher.
    (5) A description of retesting (e.g., re-administration of a test 
because of problems in the original administration such as the test 
taker becomes ill during the test and cannot finish, there are external 
interruptions during testing, or there are administration errors) 
procedures and the analysis upon which the criteria for retesting are 
based.
    (6) Such other evidence as the Secretary may determine is necessary 
to establish the test's compliance with the criteria and requirements 
the Secretary uses to determine the suitability of tests as provided in 
Sec.  462.13.
    (j) Previous tests. (1) For a test used to measure educational gain 
in the NRS before the effective date of these regulations that is 
submitted to the Secretary for review under this part, the test 
publisher must provide documentation of periodic review of the content 
and specifications of the test to ensure that the test continues to 
reflect NRS educational functioning levels.

[[Page 2318]]

    (2) For a test first published five years or more before the date 
it is submitted to the Secretary for review under this part, the test 
publisher must provide documentation of periodic review of the content 
and specifications of the test to ensure that the test continues to 
reflect NRS educational functioning levels.
    (3) For a test that has not changed in the seven years since the 
Secretary determined, under Sec.  462.13, that it was suitable for use 
in the NRS that is again being submitted to the Secretary for review 
under this part, the test publisher must provide updated data 
supporting the validity of the test for use in classifying adult 
learners with respect to the NRS educational functioning levels and the 
measurement of educational gain as defined in Sec.  462.43 of this 
part.
    (4) If a test has been substantially revised--for example by 
changing its structure, number of items, content specifications, item 
types, or sub-tests--from the most recent edition reviewed by the 
Secretary under this part, the test publisher must provide an analysis 
of the revisions, including the reasons for the revisions, the 
implications of the revisions for the comparability of scores on the 
current test to scores on the previous test, and results from validity, 
reliability, and equating or standard-setting studies undertaken 
subsequent to the revisions.

(Authority: 20 U.S.C. 9212)


Sec.  462.12  What procedures does the Secretary use to review the 
suitability of tests?

    (a) Review. (1) When the Secretary receives a complete application 
from a test publisher, the Secretary selects experts in the field of 
educational testing and assessment who possess appropriate advanced 
degrees and experience in test development or psychometric research, or 
both, to advise the Secretary on the extent to which a test meets the 
criteria and requirements in Sec.  462.13.
    (2) The Secretary reviews and determines the suitability of a test 
only if an application--
    (i) Is submitted by a test publisher;
    (ii) Meets the deadline established by the Secretary;
    (iii) Includes a test that--
    (A) Has two or more secure, parallel, equated forms of the same 
test--either traditional paper and pencil or computer-administered 
instruments--for which forms are constructed prior to administration to 
examinees; or
    (B) Is an adaptive test that uses computerized algorithms for 
selecting and administering items in real time; however, for such an 
instrument, the size of the item pool and the method of item selection 
must ensure negligible overlap in items across pre- and post-testing;
    (iv) Includes a test that samples one or more of the major content 
domains of the NRS educational functioning levels of ABE, ESL, or ASE 
with sufficient numbers of questions to represent adequately the domain 
or domains; and
    (v) Includes the information prescribed by the Secretary, including 
the information in Sec.  462.11 of this part.
    (b) Secretary's determination. (1) The Secretary determines whether 
a test meets the criteria and requirements in Sec.  462.13 after taking 
into account the advice of the experts described in paragraph (a)(1) of 
this section.
    (2) For tests that contain multiple sub-tests measuring content 
domains other than those of the NRS educational functioning levels, the 
Secretary determines the suitability of only those sub-tests covering 
the domains of the NRS educational functioning levels.
    (c) Suitable tests. If the Secretary determines that a test 
satisfies the criteria and requirements in Sec.  462.13 and, therefore, 
is suitable for use in the NRS, the Secretary--
    (1) Notifies the test publisher of the Secretary's decision; and
    (2) Annually publishes in the Federal Register and posts on the 
Internet at http://www.nrsweb.org a list of the names of tests and the 
educational functioning levels the tests are suitable to measure in the 
NRS. A copy of the list is also available from the U.S. Department of 
Education, Office of Vocational and Adult Education, Division of Adult 
Education and Literacy, 400 Maryland Avenue, SW., room 11159, Potomac 
Center Plaza, Washington, DC 20202-7240.
    (d) Unsuitable tests. (1) If the Secretary determines that a test 
does not satisfy the criteria and requirements in Sec.  462.13 and, 
therefore, is not suitable for use in the NRS, the Secretary notifies 
the test publisher of the Secretary's decision and of the reasons why 
the test does not meet those criteria and requirements.
    (2) Within 30 days after the Secretary notifies a test publisher 
that its test is not suitable for use in the NRS, the test publisher 
may request that the Secretary reconsider the Secretary's decision. 
This request must be accompanied by--
    (i) An analysis of why the information and documentation submitted 
meet the criteria and requirements in Sec.  462.13, notwithstanding the 
Secretary's earlier decision to the contrary; and
    (ii) Any additional documentation and information that address the 
Secretary's reasons for determining that the test was unsuitable.
    (3) The Secretary reviews the additional information submitted by 
the test publisher and makes a final determination regarding the 
suitability of the test for use in the NRS.
    (i) If the Secretary's decision is unchanged and the test remains 
unsuitable for use in the NRS, the Secretary notifies the test 
publisher, and this action concludes the review process.
    (ii) If the Secretary's decision changes and the test is determined 
to be suitable for use in the NRS, the Secretary follows the procedures 
in paragraph (c) of this section.
    (e) Revocation. (1) The Secretary's determination regarding the 
suitability of a test may be revoked if the Secretary determines that--
    (i) The information the publisher submitted as a basis for the 
Secretary's review of the test was inaccurate; or
    (ii) A test has been substantially revised--for example, by 
changing its structure, number of items, content specifications, item 
types, or sub-tests.
    (2) The Secretary notifies the test publisher of the--
    (i) Secretary's decision to revoke the determination that the test 
is suitable for use in the NRS; and
    (ii) Reasons for the Secretary's revocation.
    (3) Within 30 days after the Secretary notifies a test publisher of 
the decision to revoke a determination that a test is suitable for use 
in the NRS, the test publisher may request that the Secretary 
reconsider the decision. This request must be accompanied by 
documentation and information that address the Secretary's reasons for 
revoking the determination that the test is suitable for use in the 
NRS.
    (4) The Secretary reviews the information submitted by the test 
publisher and makes a final determination regarding the suitability of 
the test for use in the NRS.
    (5) If the Secretary revokes the determination regarding the 
suitability of a test, the Secretary publishes in the Federal Register 
and posts on the Internet at http://www.nrsweb.org a notice of that 
revocation along with the date by which States and local eligible 
providers must stop using the revoked test. A copy of the notice of 
revocation is also available from the U.S. Department of Education, 
Office of Vocational and Adult Education, Division of Adult Education 
and Literacy, 400 Maryland Avenue, SW., room 11159, Potomac Center 
Plaza, Washington, DC 20202-7240.

(Authority: 20 U.S.C. 9212)

[[Page 2319]]

Sec.  462.13  What criteria and requirements does the Secretary use for 
determining the suitability of tests?

    In order for the Secretary to consider a test suitable for use in 
the NRS, the test or the test publisher, if applicable, must meet the 
following criteria and requirements:
    (a) The test must measure the NRS educational functioning levels of 
members of the adult education population.
    (b) The test must sample one or more of the major content domains 
of the NRS educational functioning levels of ABE, ESL, or ASE with 
sufficient numbers of questions to adequately represent the domain or 
domains.
    (c)(1) The test must meet all applicable and feasible standards for 
test construction and validity provided in the 1999 edition of the 
Standards for Educational and Psychological Testing, prepared by the 
Joint Committee on Standards for Educational and Psychological Testing 
of the American Educational Research Association, the American 
Psychological Association, and the National Council on Measurement in 
Education incorporated by reference in this section. The Director of 
the Federal Register approves this incorporation by reference in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a 
copy from the American Psychological Association, Inc., 750 First 
Street, NE., Washington, DC 20002. You may inspect a copy at the 
Department of Education, room 11159, 550 12th Street, SW., Washington, 
DC 20202 or at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 
(202) 741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (2) If requested by the Secretary, a test publisher must explain 
why it believes that certain standards in the 1999 edition of the 
Standards for Educational and Psychological Testing were not applicable 
or were not feasible to meet.
    (d) The test must contain the publisher's guidelines for retesting, 
including time between test-taking, which are accompanied by 
appropriate justification.
    (e) The test must--
    (1) Have two or more secure, parallel, equated forms of the same 
test--either traditional paper and pencil or computer administered 
instruments--for which forms are constructed prior to administration to 
examinees; or
    (2) Be an adaptive test that uses computerized algorithms for 
selecting and administering items in real time; however, for such an 
instrument, the size of the item pool and the method of item selection 
must ensure negligible overlap in items across pre- and post-testing. 
Scores associated with these alternate administrations must be 
equivalent in meaning.
    (f) For a test that has been modified for individuals with 
disabilities, the test publisher must--
    (1) Provide documentation that it followed the guidelines provided 
in the Testing Individuals With Disabilities section of the 1999 
edition of the Standards for Educational and Psychological Testing;
    (2) Provide documentation of the appropriateness and feasibility of 
the modifications relevant to test performance; and
    (3)(i) Recommend educational functioning levels based on the 
information obtained from adult education students who participated in 
the pilot or field test and who have the disability for which the test 
has been modified; and
    (ii) Provide documentation of the adequacy of the procedures used 
to translate the performance of adult education students with the 
disability for whom the test has been modified to an estimate of the 
examinees' standing with respect to the NRS educational functioning 
levels.

(Authority: 20 U.S.C. 9212)


Sec.  462.14  How often and under what circumstances must a test be 
reviewed by the Secretary?

    (a) The Secretary's determination that a test is suitable for use 
in the NRS is in effect for a period of seven years from the date of 
the Secretary's written notification to the test publisher, unless 
otherwise indicated by the Secretary. After that time, if the test 
publisher wants the test to be used in the NRS, the test must be 
reviewed again by the Secretary so that the Secretary can determine 
whether the test continues to be suitable for use in the NRS.
    (b) If a test that the Secretary has determined is suitable for use 
in the NRS is substantially revised--for example, by changing its 
structure, number of items, content specifications, item types, or sub-
tests--and the test publisher wants the test to continue to be used in 
the NRS, the test publisher must submit, as provided in Sec.  
462.11(j)(4), the substantially revised test or version of the test to 
the Secretary for review so that the Secretary can determine whether 
the test continues to be suitable for use in the NRS.

(Authority: 20 U.S.C. 9212)

Subpart C--[Reserved]

Subpart D--What Requirements Must States and Local Eligible 
Providers Follow When Measuring Educational Gain?


Sec.  462.40  Must a State have an assessment policy?

    (a) A State must have a written assessment policy that its local 
eligible providers must follow in measuring educational gain and 
reporting data in the NRS.
    (b) A State must submit its assessment policy to the Secretary for 
review and approval at the time it submits its annual statistical 
report for the NRS.
    (c) The State's assessment policy must--
    (1) Include a statement requiring that local eligible providers 
measure the educational gain of all students who receive 12 hours or 
more of instruction in the State's adult education program with a test 
that the Secretary has determined is suitable for use in the NRS;
    (2) Identify the pre- and post-tests that the State requires local 
eligible providers to use to measure the educational gain of ABE, ESL, 
and ASE students;
    (3)(i) Indicate when, in calendar days or instructional hours, 
local eligible providers must administer pre- and post-tests to 
students; and
    (ii) Ensure that the time for administering the post-test is long 
enough after the pre-test to allow the test to measure educational 
gains according to the test publisher's guidelines;
    (4) Specify the score ranges tied to educational functioning levels 
for placement and for reporting gains for accountability;
    (5) Identify the skill areas the State intends to require local 
eligible providers to assess in order to measure educational gain;
    (6) Include the guidance the State provides to local eligible 
providers on testing and placement of an individual with a disability 
or an individual who is unable to be tested because of a disability;
    (7) Describe the training requirements that staff must meet in 
order to be qualified to administer and score each test selected by the 
State to measure the educational gains of students;
    (8) Identify the alternate form or forms of each test that local 
eligible providers must use for post-testing;
    (9) Indicate whether local eligible providers must use a locator 
test for guidance on identifying the appropriate pre-test;

[[Page 2320]]

    (10) Describe the State's policy for the initial placement of a 
student at each NRS educational functioning level using test scores;
    (11) Describe the State's policy for using the post-test for 
measuring educational gain and for advancing students across 
educational functioning levels;
    (12) Describe the pre-service and in-service staff training that 
the State or local eligible providers will provide, including 
training--
    (i) For staff who either administer or score each of the tests used 
to measure educational gain;
    (ii) For teachers and other local staff involved in gathering, 
analyzing, compiling, and reporting data for the NRS; and
    (iii) That includes the following topics:
    (A) NRS policy, accountability policies, and the data collection 
process.
    (B) Definitions of measures.
    (C) Conducting assessments; and
    (13) Identify the State or local agency responsible for providing 
pre- and in-service training.

(Approved by the Office of Management and Budget under control 
number 1830-0027)

(Authority: 20 U.S.C. 9212)


Sec.  462.41  How must tests be administered in order to accurately 
measure educational gain?

    (a) General. A local eligible provider must measure the educational 
gains of students using only tests that the Secretary has determined 
are suitable for use in the NRS and that the State has identified in 
its assessment policy.
    (b) Pre-test. A local eligible provider must--
    (1) Administer a pre-test to measure a student's educational 
functioning level at intake, or as soon as possible thereafter;
    (2) Administer the pre-test to students at a uniform time, 
according to its State's assessment policy; and
    (3) Administer pre-tests to students in the skill areas identified 
in its State's assessment policy.
    (c) Post-test. A local eligible provider must--
    (1) Administer a post-test to measure a student's educational 
functioning level after a set time period or number of instructional 
hours;
    (2) Administer the post-test to students at a uniform time, 
according to its State's assessment policy;
    (3)(i) Administer post-tests with a secure, parallel, equated form 
of the same test--either traditional paper and pencil or computer-
administered instruments--for which forms are constructed prior to 
administration to examinees to pre-test and determine the initial 
placement of students; or
    (ii) Administer post-tests with an adaptive test that uses 
computerized algorithms for selecting and administering items in real 
time; however, for such an instrument, the size of the item pool and 
the method of item selection must ensure negligible overlap in items 
across pre- and post-testing; and
    (4) Administer post-tests to students in the same skill areas as 
the pre-test.
    (d) Other requirements. (1) A local eligible provider must 
administer a test using only staff who have been trained to administer 
the test.
    (2) A local eligible provider may use the results of a test in the 
NRS only if the test was administered in a manner that is consistent 
with the State's assessment policy and the test publisher's guidelines.

(Approved by the Office of Management and Budget under control 
number 1830-0027)

(Authority: 20 U.S.C. 9212)


Sec.  462.42  How are tests used to place students at an NRS 
educational functioning level?

    (a) A local eligible provider must use the results of the pre-test 
described in Sec.  462.41(b) to initially place students at the 
appropriate NRS educational functioning level.
    (b) A local eligible provider must use the results of the post-test 
described in Sec.  462.41(c)--
    (1) To determine whether students have completed one or more 
educational functioning levels or are progressing within the same 
level; and
    (2) To place students at the appropriate NRS educational 
functioning level.
    (c)(1) States and local eligible providers are not required to use 
all of the skill areas described in the NRS educational functioning 
levels to place students.
    (2) States and local eligible providers must test and report on the 
skill areas most relevant to the students' needs and to the programs' 
curriculum.
    (d)(1) If a State's assessment policy requires a local eligible 
provider to test a student in multiple skill areas and the student will 
receive instruction in all of the skill areas, the local eligible 
provider must place the student in an educational functioning level 
that is equivalent to the student's lowest test score for any of the 
skill areas tested under Sec.  462.41(b) and (c).
    (2) If a State's assessment policy requires a local eligible 
provider to test a student in multiple skill areas, but the student 
will receive instruction in fewer than all of the skill areas, the 
local eligible provider must place the student in an educational 
functioning level that is equivalent to the student's lowest test score 
for any of the skill areas--
    (i) Tested under Sec.  462.41(b) and (c); and
    (ii) In which the student will receive instruction.

(Approved by the Office of Management and Budget under control 
number 1830-0027)

(Authority: 20 U.S.C. 9212)

Sec.  462.43  How is educational gain measured?

    (a)(1) Educational gain is measured by comparing the student's 
initial educational functioning level, as measured by the pre-test 
described in Sec.  462.41(b), with the student's educational 
functioning level as measured by the post-test described in Sec.  
462.41(c).

    Example: A State's assessment policy requires its local eligible 
providers to test students in reading and numeracy. The student 
scores lower in reading than in numeracy. As described in Sec.  
462.42(d)(1), the local eligible provider would use the student's 
reading score to place the student in an educational functioning 
level. To measure educational gain, the local eligible provider 
would compare the reading score on the pre-test with the reading 
score on the post-test.

    (2) A student is considered to have made an educational gain when 
the student's post-test indicates that the student has completed one or 
more educational functioning levels above the level in which the 
student was placed by the pre-test.
    (b) If a student is not post-tested, then no educational gain can 
be measured for that student and the local eligible provider must 
report the student in the same educational functioning level as 
initially placed for NRS reporting purposes.

(Approved by the Office of Management and Budget under control 
number 1830-0027)

(Authority: 20 U.S.C. 9212)


Sec.  462.44  Which educational functioning levels must States and 
local eligible providers use to measure and report educational gain in 
the NRS?

    States and local eligible providers must use the NRS educational 
functioning levels in the following functioning level table:
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(Approved by the Office of Management and Budget under control 
number 1830-0027)

(Authority: 20 U.S.C. 9212)
[FR Doc. 08-69 Filed 1-11-08; 8:45 am]
BILLING CODE 4001-01-C


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